Non-profit Fanwork: No, It’s Not Stealing
Anime/Comics, Literary, Musings, Online, Rants, World May 28th, 2007The Gist of It: Fanworks are technically illegal. However not only do I think it shouldn’t be but the problems in itself is just ONE example of the law’s inability to deal with the concept of “information” as separate from its notions about physical property.
And now for the Too Long; Didn’t Read part.
Context and Definitions
I’ve never been one to heavily participate in any fandom; netwise, while I grew up around anime shrines and collectives I’ve never much been involved with it. I don’t write fanfiction, I don’t draw fanart. The closest is me maintaining a fanfic archive. However, I’ve always been a firm believer in there being something not quite right about making fanwork illegal, and for the longest time I thought it was legal (under some sort of “fair use” principle). But I’m wrong and hence this entry. Along the way, it helped that I had many an offline discussion with Tim on the matter (and related issues) as well as participating in similar discussions with Snark members.
When I mention “fanworks” in this entry, I mean media produced by fans of an existing genre of anything. This usually means fan ficition and fan art of existing movies, books, comics, etc etc. By “non-profit” I mean people who create fanworks and do not have them published to get money, i.e. entirely non-commerical. I am not talking about illegally downloading copyrighted materials such as music and movies. I think my arguments probably extends to, say, use of copyright images that get appropriated into layouts and web graphics, but to keep things tight, I’ll just be talking about fanworks here.
Further disclaimer: I barely known enough Australian law to get by as a law student, I know even less American law. Furthermore, very little proper jurisprudential research has been done by me, these are really just preliminary thoughts at best. Don’t be a moron and take the following as legal advice in any way.
Legalities
Fanworks are technically illegal. For an indepth reason this details why fanfiction is technically illegal in America. To sum up it seems that not only is fanworks most probably not considered “parody” and “fair use” but it’ll most likely contravene trademark laws too. For example, a fanfic on Harry Potter is illegal as it uses both copyrighted and trademarked characters without permission from the author. I believe such sentiments would probably be reflected in other Western jurisdictions too.
Of note, is that there hasn’t been a case where someone has sued another for publishing (non-profit or otherwise) fanworks. There’s been authors who publicbly denounce fanfiction, for example, like Anne Rice and threaten to sue. There’s also been a number of cease and desist letters sent to writers and fansites (a database of them is available at Chilling Effects) that threaten legal action. However, these fans would most likely be terrified of recieving such notices and fanworks would be removed and the matter settled. Therefore, without any case law to clarify and make certain the status of fanworks, I’m optimistic fanworks are only illegal in the strictest sense.
I would think it’s also arguably a very important factor when we’re dealing with NON-PROFIT, NON-COMMERICAL fanwork. Copyright/trademark owners do not lose anything, including profits, when someone writes fanfiction or draws fanart. The courts are generally reluctant to treat cases where there has been no commercial damage as a commercial case, but without any case law involving fanworks as precedent, this is also very unclear. For more information about fandom legalities, do visit my current favourite community, Fandom Lawyers.
Information =/= Physical Property
The problem is, currently, the law is trying to treat information as physical property. By physical property I mean tangible stuff, like houses, cars, paintings etc, things you can pick up and take away. If you pick up someone’s wallet and take off with it, you’ve deprived that person of their wallet. But information doesn’t work that way! This idea is best summed by George Bernard Shaw, who said:
“If you have an apple and I have an apple and we exchange these apples then you and I will still each have one apple. But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas.â€
To again take Harry Potter as an example, after reading the book, I have the information about Potterness in my head. Yet I haven’t inadvertently deprived anyone of their Potter information. If I were to use the Potter information in my head to fabricate a picture or piece of writing, who has been harmed?
Some people would argue that the harm exists in the USE of the original media, which I suppose would mean even the very THOUGHT of Harry Potter one might have technically belongs to JK Rowling. Even if you didn’t write or draw anything, even if you were to say, talk to your friends about Harry Potter, aren’t you technically using a trademarked character/plot without Rowling’s permission? See the absurdity? It’s absurd to even consider information as a form of property because it information is NOT a physical object.
Circularity: Copyright Laws Are Justified because Copyright Laws Says So
Some people have argued that even outside the realms of legality, you shouldn’t use something that someone else has created. Original characters, stories, artwork etc are okay, but fanworks are not because you’re just taking someone else’s ideas and calling them your own. I’d say that’s a rather superficial distinction.
If I were to write a poem about a pretty sunflower, most would agree that that’s a pretty original piece of work. But isn’t that poem just a fanwork about a sunflower? Is there a difference between me having written a poem about a sunflower I own or a sunflower I saw in someone’s garden? If it’s the latter case am I “stealing” the information about the “sunflowerness”? If I were to draw a picture inspired by a bespectacled boy walking down the street, is that really somehow more original than if I were to draw a picture inspired by Harry Potter?
And therein lies the circularity of it. If we’re dealing with concepts outside of legalities it is roundabout to say that some things are original while others are not if you’re using legal definitions. That’s kind of like saying, “fine, if we’re not going to talk about the law, it’s still unethical to use existing media because the law says that media has a protected status”. It doesn’t sit right to say works about boys and sunflowers are okay because no one owns them; but works regarding Harry Potter and Stargate are not okay because the law says they’ve been tagged by someone already. Copyrights and trademarks are just identifiers of who got to the copyright/trademark office first, it does not have a significance beyond that. We live in an age of postmodernism when new ideas are built upon old ones. How is it fair to accuse certain works to be unethical and unoriginal if they use existing works as inspiration, while existing works are themselves based off older story themes (e.g. wizards, spaceships, vampires etc)?
Summing Up
If we’re not talking about making money, to illegalise and possibly punish those who make creative works based on existing media is ludicrous. The above arguments is still valid to cover appropriation of graphics and such that’s used on non-profit, non-commerical fan sites too. It is however a different matter if we’re talking about making money though. The market comes into play and I feel that’s where trademarks and copyright may still have validation; i.e. to protect economic interests. This is why there’s been quite a bit of kerfluffle over a new commerical fanfiction archive, fanlib.com. A great summary is available here and more about it in the Life Without Fanlib community. But that’s beyond today’s entry. Otherwise… fanworks all the way! Whoo! :D
7 Responses to “Non-profit Fanwork: No, It’s Not Stealing”
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Although we don’t necessarily agree in all areas of copyright, it is refreshing to see you so determined to distribute the idea that information is/should be free. It’s always nice to be passionate about something, I guess :)
I’d say Harry Potter was based on a theme (wizards) rather than on previous works, which is where your argument would fall apart.
To Jem: I practically live on the internet, I guess it’s not surprisingly that my passion lies in something this geeky. :P
To Mike: One would obviously feel there is a difference there but that highlights the arbitrary nature of how the law deals with issues of copyright. I think there’s not that much a distinction between a theme and a previous work. For example, take “orcs”. It’s in lots of new fantasy fiction (WoW, D&D etc) these days, I guess it could be considered a theme. Yet orcs as we know it was born solely out of the works of Tolkien. Are orcs a theme or a previous work? Just because Tolkien didn’t put a copyright over his creation, is it to be assumed that it’s just part of “fantasy stock” like how wizards are?
Furthermore, there are many non-themes to Potter just by creatures alone, (werewolves, veelas, mermaids), I don’t see how that’s different from the sunflower example I used above.
In the case of writing a fan fiction, you would be writing it presumably about Harry or some other character that was specifically created for the work.
I’m not a law student so I don’t know the technicalities, but I understand how something like a character can be trademarked. Most of the stuff in Harry Pooter was made up anyway, instead of taken from a traditional “wizard” sort of them. Although, on that note. The Orcs used in most games today are based off of D&D orcs, which are something completely different from the orcs in LOTR. They’re also additionally different from Warhammer’s original orcs (Corrupted Elves, Seperate Humanoid Race, Fungus Spawn? respectively). And at that point, I would question where Tolkien got his inspiration from. I would bet it is some sort of mythos already established.
This isn’t to say I don’t agree with you that non-profit fan fiction shouldn’t be illegal. I just see what I take as a large flaw in the base of your argument.
You’re correct, as I said in the “legalities” section characters like Harry Potter is trademarked. However, what bothers me is when people say that the law should be such a way because the law says it is. Yes, Harry Potter is protected by the law but does it make sense? On a meta level, I’m arguing, it doesn’t and it’s frustrating when people use the argument “yes it should be trademarked because it’s trademarked”. On the topic of Potter, there are many elements of it that is entirely not made up. Take the number of mythical beasts such as dragons, phoenixes, elves etc. These things are usually seen to be from some sort of nebulous “fantasy” stock and people seem to think it’s okay because it’s not trademarked. Branding a creative idea with a legal trademark/copyright is just a legal technicality, it doesn’t make a piece of work any more original than the next. And yes, as you pointed out, Tolkien orcs are probably inspired by other earlier sources. That is another example of how sources of information that for something creative does not operate in vacuum.
If we’re to keep using Harry Potter as an example we can break it down from the not-specific to the specific. You can view the character as:
A thing > A book character > A wizard > A boy wizard > A boy wizard called Harry Potter.
I would say that it’s the very last “category” that people would intuitively think of protecting. But consider my sunflower example:
A thing > A flower > A sunflower > A sunflower that belongs in my neigbour’s garden > The biggest sunflower in my neighbour’s garden that my neighbour had named it “Dave”
None of the above would be trademarked/copyrighted and hence even at the very specific, if I was to write about Dave, people don’t think it’s a problem. OUTSIDE of law, is writing about a preexisting character called Harry Potter different from writing about an existing huge sunflower called Dave? All I’m trying to say is that on the spectrum of general information to specific information, where do we draw the line between what is okay to write/draw about and should there be such a line? Such an answer should define how to protect information in law, we can’t use the law to define itself as that’s circular argument. I think all this points to needing to create new laws to address the peculiar nature of information as the current one doesn’t sit right.
Atomic Absorption Spectroscopy analysis reveals this comment to be chemically comprised of equal parts Win and Puppy-Smiles. Well done.
Fandom is such a huge part of my life - offline and online - that its absence would have a huge impact. D= And I’ve seen so many written articles over this issue (threats and defenses), but I’d still agree with your points. As long as the fans don’t profit, I don’t see why not. Sometimes, there are cases when it’s the “fandom” that lures newcomers to a specific series or title, etc. Sometimes that’s where it starts and the owners themselves could profit from it. Which is why I’m glad when I find authors like Stephenie Meyer who supports (and sometimes reads fan fiction) the world of fandom themselves. xD